 | This article needs additional citations for verification .(March 2018) |
In the English system of common law, judges have devised a number of mechanisms to allow them to cope with precedent decisions.
| | This article needs additional citations for verification .(March 2018) |
In the English system of common law, judges have devised a number of mechanisms to allow them to cope with precedent decisions.
According to Montesquieu, it is Parliament that has the rightful power to legislate, not the judiciary. The legal fiction is that judges do not make law, they merely "declare it". Thus, common law is declaratory, and this is often retrospective in effect. For example, see Shaw v DPP [1] and R v Knuller . [2] In the search for justice and fairness, there is a tension between the needs for, on one hand, predictability and stability, and "up-to date law", on the other. [3]
There is a hierarchy of courts, and a hierarchy of decisions. All lower courts are bound by the judgments from higher courts; and higher courts are not bound by decisions from lower courts.
With one exception, courts of record are bound by their own precedent decisions. The House of Lords used to be bound by its own decisions, but in 1966 it issued a Practice Direction declaring that it would no longer feel so constrained; [4] the Supreme Court is similarly free to depart from earlier decisions. By contrast, the Court of Appeal is bound by its own decisions, although for a period Lord Denning, MR, acted as though it were not. [5] [6] Inferior courts are not strictly courts of record, but some, such as employment tribunals methodically report their own cases, and have built up a specialist body of common law. Courts such as the magistrates court cannot establish precedent.
Even if a court is bound to observe a precedent decision, it does not follow that the whole of the judgment is binding. One must distinguish between ratio decidendi and obiter dicta . Ratio decidendi is the "reason for the decision", and forms the crux of the cases; whereas obiter dicta is "other things that are said", i.e. matters said in passing, judicial asides, hypothetical issues, and broad issues. Ratio decidendi is binding on other courts, whereas obiter dicta is persuasive only.
An effective test to see if a part of the judgment is ratio or obiter is "Wambaugh's Inversion Test", whereby one must invert the question, and ask, "would the decision have been different without this part of the judgment?". In other words, ask, "Is it crucial?". If not, it is obiter dicta.
If a judgment establishes a broad principle of law, then strictly speaking that principle is too wide to be said to be ratio decidendi. Nevertheless, if that broad principle is approved and applied by later courts, then the principle will eventually be treated as ratio. A particular example is the broad "neighbour principle", enunciated by Lord Atkin in Donoghue v Stevenson 1932, which has become the basis of the modern law of negligence. When judges may face conflicting precedents, they may select the preferable case. [7]
Dissenting judgments are not ratio, and so must be obiter. Sometimes, with the passage of time, more attention is given to the dissenting judgment that to the majority judgment. [8] [9] Scottish decisions (and decisions from the USA and common law jurisdictions in the Commonwealth) are, like obiter dicta, merely persuasive in England.
If faced with a binding judicial precedent, a court has a number of ways to respond to it, and may use the following legal devices and mechanisms: [10]
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive without going to courts for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The principle by which judges are bound to precedents is known as stare decisis. Common-law precedent is a third kind of law, on equal footing with statutory law and subordinate legislation in UK parlance – or regulatory law.
The Court of Appeal is the highest court within the Senior Courts of England and Wales, and second in the legal system of England and Wales only to the Supreme Court of the United Kingdom. The Court of Appeal was created in 1875, and today comprises 39 Lord Justices of Appeal and Lady Justices of Appeal.
Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a case that have been resolved by courts or similar tribunals. These past decisions are called "case law", or precedent. Stare decisis—a Latin phrase meaning "let the decision stand"—is the principle by which judges are bound to such past decisions, drawing on established judicial authority to formulate their positions.
The Practice Statement [1966] 3 All ER 77 was a statement made in the House of Lords by Lord Gardiner LC on 26 July 1966 on behalf of himself and the Lords of Appeal in Ordinary, that they would depart from precedent in the Lords in order to achieve justice.
In general usage, a dictum is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, dictum can have a specific meaning.
Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 is a famous English contract law decision in the High Court. It reaffirmed and extended the doctrine of promissory estoppel in contract law in England and Wales. However, the most significant part of the judgment is obiter dicta as it relates to hypothetical facts; that is, the landlord did not seek repayment of the full wartime rent.
Obiter dictum is the Latin phrase meaning "other things said", that is, a remark in a legal opinion that is "said in passing" by any judge or arbitrator. It is a concept derived from English common law, whereby a judgment comprises only two elements: ratio decidendi and obiter dicta. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta are persuasive only.
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case that determines the judgement" or "the principle that the case establishes".
In law, to distinguish a case means a court decides the legal reasoning of a precedent case will not wholly apply due to materially different facts between the two cases. If distinguishing, two formal constraints must be apparent in the judgment of the later court: the expressed factors or relevant considerations in the ratio of the earlier case must be re-used or stated to apply but for an additional fact not envisaged by the earlier court, and the ruling in the later case must not expressly doubt (criticise) the result reached in the precedent case.
The holding is a court's determination of a matter of law based on the issue presented in the particular case. In other words: under this law, with these facts, this result. It is the same as a 'decision' made by the judge; however "decision" can also refer to the judge's entire opinion, containing, for example, a discussion of facts, issues, and law as well as the holding. The holding is the "legal principle to be drawn from the opinion (decision) of the court."
Per incuriam, literally translated as "through lack of care" is a device within the common law system of judicial precedent. A finding of per incuriam means that a previous court judgment has failed to pay attention to relevant statutory provision or precedents.
Young v. Bristol Aeroplane Co Ltd was an English court case that established that the Court of Appeal is bound to follow its own decisions and those of courts of co-ordinate jurisdiction, except in the following cases:
Pepper v Hart [1992] UKHL 3, is a landmark decision of the House of Lords on the use of legislative history in statutory interpretation. The court established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege.
Miliangos v George Frank Ltd, [1976] AC 443 is a leading decision of the House of Lords enforcement of debts. The case created the Miliangos rule that allows creditors under a contract to obtain judgment under a foreign currency. The Lords stated that the date of payment would be the date of conversion to the foreign currency.
Murphy v Brentwood District Council[1991] UKHL 2, [1991] 1 AC 398 was a judicial decision of the House of Lords in relation to recovery for pure economic loss in tort.
Intention to create legal relations', otherwise an "intention to be legally bound", is a doctrine used in contract law, particularly English contract law and related common law jurisdictions.
Merritt v Merritt [1970] EWCA Civ 6 is an English contract law case, on the matter of creating legal relations. While under the principles laid out in Balfour v Balfour, domestic agreements between spouses are rarely legally enforceable, this principle was rebutted where two spouses who formed an agreement over their matrimonial home were not on good terms.
Alfred Thompson "Tom" Denning, Baron Denning, was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when he was appointed to the Probate, Divorce and Admiralty Division of the High Court of Justice, and transferred to the King's Bench Division in 1945. He was made a Lord Justice of Appeal in 1948 after less than five years in the High Court. He became a Lord of Appeal in Ordinary in 1957 and after five years in the House of Lords returned to the Court of Appeal as Master of the Rolls in 1962, a position he held for twenty years. In retirement he wrote several books and continued to offer opinions on the state of the common law through his writing and his position in the House of Lords.
Coward v MIB was a 1963 Court of Appeal decision on intention to create legal relations, and on the liability of the Motor Insurers Bureau when a passenger in a vehicle is killed or injured through the driver's negligence.
Farah Constructions v Say-Dee Pty Ltd, also known as Farah, is a decision of the High Court of Australia. The case was influential in developing Australian legal doctrines relating to equity, property, unjust enrichment, and constructive trusts, as well as the doctrine of precedent as it applies in Australia.